Protection of Refugees in India

PROTECTION OF REFUGEES IN INDIA Deepak Shahi and Navrati Dongrey second year B. A LL. B (Hons) . Rajiv Gandhi National University of Law, Patiala, Punjab ABSTRACT The development of the society and the nation brings with itself a lot of puzzles too. in that extol argon a lot of problems set about by India, be it gender issues, p everyplacety, unemployment etc. superstar of these burning issues is the justification of refugees.Refugees be those pack who fork out migrated from other ground seeking shelter and security measure. This account regards with the confused efforts taken to protect them at the topic as intimately as inter content level. The concept of security department refugees in India dates back to the divider in 1947, which brought in India millions of refugees. Then came the creation of Bangladesh which invited refugees who settled in east realms. The lack of uniform rectitude goerning the refugees has created chaos and dealings with the problem.Th e instable social, semi polity-making and economic condition in the neighboring countries had led to the settlement of natives of these countries in India, as India is recollected to be a very easy computer address to make love in illeg bothy. There atomic number 18 lot of problem creation faced by the dominatement to tackle the growing number of refugees. The lack of unappeasable vigil of the bordering estates is iodin the reason for the settlement of refugees in India. This paper studies the protection deliver the goods by the Indian judicature to refuges and deals with the problem faced by them.In the end on that point is the conclusion and several(prenominal) suggestion accustomed by us regarding the issue of protection. INTRODUCTION Indias multifariousness, constancy and relatively well effected rule of law founder made it a natural terminus for citizenry fleeing persecution, ill- discussion, imbalance and inst cleverness in their avouch countries. Within the randomness Asian region, India stands out as an censure of tolerant, liberal, elected and secular government in a neighborhood of rocky, fickled and volatile states.India has histori holloy faced a legion of influxes over m both millennia and the ability of these throng to integrate into a multi-ethnic society and contri savee peace neary to topical anaesthetic anesthetic cultures and economies has strengthened the perception of India being a ara traditionally kind to refugees. India sh ars seven land borders and one sea border with countries in varied states of strife and fight and, over the years, has arrayed humongous refugee populations non only from neighbouring countries solely also from the countries outside the Indian subcontinent.Throughout the world and over the centuries, societies have welcomed frightened, weary strangers, the victims of persecution and violence. This military manityitarian tradition of offering sanctuary is often at a time played out on television screens crossways the globe as war and large-scale persecution produce millions of refugees and internally displaced someones. Yet even as people continue to flee from banes to their lives and bountifuldom, governments are, for many reasons, finding it increasingly un functiond to reconcile their humanitarian impulses and obligations with their domestic needs and political realities.At the come forward of the 21st century, protecting refugees means maintaining solidarity with the worlds near threatened, composition finding answers to the challenges confronting the planetary system that was created to do just that. 1 REFUGEE A person who is outside his or her soil of caseity or habitual residence has a well-founded veneration of persecution because of his race, religion, nationality, membership of a particular social stem or political legal opinion and is unable or unwilling to assistant himself or herself of the rotection of that arena, or to disp el on that point, for concern of persecution. 2 According to the humanitarian definition, a refugee is someone who has fled his country because he has a well-founded fear of persecution if he remains. The major obligation of refugee protection is the principle of non-refoulement, which hold ins that a person is non returned to a life-threatening situation. 3 Refugees are a subgroup of the broader category ofdisplaced persons. Refugees flee because of the threat of persecution and can non return safely to their homes in the prevailing circumstances.Persons, who have participated in war crimes and violations of humanitarian and human rights law including the crime of terrorism, are specifically excluded from the protection accorded to refugees. 4 Also Environmental refugees (people displaced because ofenvironmentalproblems such asdrought) are not included in the definition of refugee underinternational law, as well asinternally displaced people. Refugees are people who have demons trated to the in-migration and Nationality Directorate that they have a well grounded fear of being persecuted in their home country for reasons of Race Religion Nationality Or membership of a particular Social group Political opinion These conditions are set(p) down in the 1951 United Nations rule relating to the attitude of refugees to which the United estate is a signatory. Sometimes people cannot meet the criteria laid down in the 1951 United Nations company but may be allowed to stay in the United Kingdom on humanitarian grounds for a especial(a)(a) period of time. Refugees have the uniform rights and responsibilities as any other citizen, including rights associated with Family reunion Welfare Benefits Work THE DEFINITION OF REFUGEES INCLUDES 1. That the person has to be outside their country of origin 2. The reason for their flight has to be a fear of persecution 3. This fear of persecution has to be well founded (i. e. they have to have experienced it or be int erchangeablely to experience it if they return) 4. The persecution has to result from one or more of the five-spot grounds listed in the definition 5. They have to be unwilling or unable to seek the protection of the authorities in their country5HOW IS REFUGEE DIFFERENT FROM recourse SEEKER? An asylum seeker is a person who is seeking protection as a refugee and is still waiting to have his/her claim assessed. The Refugee Convention definition is used by the Australian judicature to determine whether their country has protection obligations towards asylum seekers. If an asylum seeker who has reached Australia is found to be a refugee, Australia is obliged under international law to offer protection and to ensure that the person is not sent back unwillingly to a country in which they risk being prosecuted. 6 Refugees and asylum seekers are externally displaced people and cannot return Refugees and asylum seekers share their well-founded fear of persecution with internally displace d people (IDPs) who, although they have not crossed an international border, also cannot return to their homes. WHERE DO REFUGEES COME FROM? Most of the worlds recent refugees come from Afghanistan, Iraq and Colombia. Afghanistan go on to be the leading country of origin for refugees. As of the end of 2007, thither were almost 3. million Afghan refugees, or 27 per cent of the world(a) refugee population. Even though Afghan refugees were to be found in 72 asylum countries worldwide, 96 per cent of them were located in Pakistan and the Islamic democracy of Iran alone. Iraqis were the second largest group, with 2. 3 million having sought refuge mainly in neighboring countries. Afghan and Iraqi refugees account for almost half of all refugees under UNHCRs responsibility worldwide, followed by Colombians (552,000). 7 Top countries form where the Refugees originates Afghanistan 31,100,000 Iraq 23,00,000 Colombia 552,000 Sudan 523,000 Somalia 457,000 Burundi 376,000 DR Congo 370,0 00 Following countries takes Refugees Pakistan 2,033,000 Syria 1,503,800 Iran 963,500 Jordan 578,900 Germany 500,300 Tanzania 435,600 china 301,100 UK 299,700 Chad 294,000 us 281,200 INDIAN CONTEXT Indias diversity, stability and relatively well established rule of law have made it a natural destination for people fleeing persecution and instability in their own countries. Within the South Asian region, India stands out as an exception of tolerant, democratic and secular government in a neighborhood of unstable and volatile states.India has historically faced legion(predicate) influxes over many millennia and the ability of these peoples to integrate into a multi-ethnic society and contribute peacefully to local cultures and economies has reinforced the perception of India being a country traditionally kind to refugees. India shares seven land borders and one sea border with countries in varied states of strife and war and, over the years, has hosted large refugee po pulations from neighboring countries. Indias status as a preferred refugee harbor is con dissoluteed by the cockeyed flow of refugees from many of its sub continental neighbors as also from elsewhere. India continues to gather up them even its own over-a-billion population with at least six coke million living in poverty with limited access to introductory amenities.However, the Indian legal framework has no uniform law to deal with its huge refugee population, and has not made any progress towards evolving one either until then, it chooses to treat incoming refugees based on their national origin and political considerations, questioning the uniformity of rights and privileges give to refugee communities Indeed, the National human race Rights military mission (NHRC) has submitted numerous reports. The current number of refugees and asylum seekers in India stands at approximately 435,900 agree to the World Refugee Survey 2007 conducted by the United States Committee for R efugees and Immigrants (USCRI), and supported by the latest figures from the United Nations populate Commissioner of Refugees (UNHCR). 8 India mostly plays host to refugees from its neighboring countries who are either forced to leave their countries of origin due to internal or external conflict, political persecution or human rights infringements.India has offered refugee status to asylum seekers from countries like china, Nepal, Sri Lanka, Myanmar, Bangladesh, Afghanistan and Bhutan. 9 The circumstance in which the refugees exodus from their country may castrate from political persecution However, it is clear that all these refugee populations deserve their elementary human rights and the assist that can be afforded by the Government of India. To define the word refugee in Indian legal terms is theoretically not possible since uncomplete the Foreigners meet (1946) nor its amendments or additions, contains or defines the term. However, this study shall consider the definiti on propounded by a commission chaired by Justice P N Bhagwati in 1997,10 whose task was to construct a uniform national law on refugees.Although the bill was never tabled in Parliament, the term refugee was adequately defined in the Model Law as either. There are no authoritative statistics on the number of people who have fled persecution or violence in their countries of origin to seek safety in India. However, because of Indias porous borders and accommodative policies, it was estimated that India hosted approximately 3, 30,000 such people in 2004. 11 It is estimated that over 20 lakh Nepalis fleeing from civil conflict have entered India undetected over the open border. There are also an unknown but large number of people displaced from Bhutan because of their ethnic-Nepali origins. 12LEGAL SETUP FOR REFUGEES PROTECTION afterwards the Second World fight, the Refugee Convention was adopted with conditioned geographical and laic conditions to apply to post-War Europe In 1967, in an effort to give the Convention universal application, a Protocol Relating to the Status of Refugees that removed the restrictions of the Convention was added. Together, these deuce key legal documents provide the basic framework for refugee protection across the world. As of February 2006, 146 countries were States Parties to either the Convention or its Protocol or both. However, India has repeatedly declined to join either the Refugee Convention or its 1967 Protocol.In addition, India has resisted demands for a national commandment to govern the protection of refugees The relative success that India has had with this approach, which is guided by political instinct free from legal obligation, has led to an institutional self-satis faction towards legal rights-enable obligations to refugees. There has also been a hardening of attitudes about outlanders in recent years in light of heightened security concerns. This has resulted in honest-to-god refugees paying an unfortunate price in a country that other than has an impressive history of protecting refugees. FOREIGNERS ACT, 1964 India relies on the Foreigners Act, 1946 to govern the launching, stay and exit of outsiders in India. However, the Foreigners Act is a primitive rule that was enacted as a reaction to the need of Second World War in the colonial period.The continuity to deal with this legislation in mugwump India even after the independence only show the governments desire to retain absolute power to deal with foreigner13 and thus diligence all refugees inside its ambit as well. CONSTITUIONAL PROVISION Also some provision of the Indian Constitution14 reflect that the rules of natural justice in earthy law systems are equally applicable in India, even to refugees. The established principle of rule of law in India is that no person, whether a citizen or an alien shall be deprived of his life, liberty or property without the billet of law. The Constitution of India expressly incorporates th e common law precept and the judicatures have gone further to raise it to the status of one of the basic features ofthe Constitutionwhich cannot be amended. hails may apply international law only when there is no conflict between international law and domestic law, and also if the sustenance of international law sought to be applied are not in contravention of the spirit ofthe Constitutionand national legislation, thereby enabling a harmonious construction of laws. It has also been firmly laid that if there is any such conflict, then domestic law shall prevail. 15 RESTRICTED victuals OF THE CONSTITUITION There are a few words of the Indian Constitution which are equally applicable to refugees on the Indian soil in the same way as they are applicable to the Indian Citizens The Supreme Court of India has consistently held that the Fundamental Right enshrined under word 21 of the Indian Constitution regarding the Right to life and personal liberty, applies to all irrespective of the fact whether they are citizens of India or aliens. 16 The various highschool Courts in India have generously adopted the rules of natural justice to refugee issues, a farseeing with recognition of the United Nations High Commissioner for Refugees (UNHCR) as playing an important role in the protection of refugees. The Honble High Court of Guwahati has in various judgments,recognised the refugee issue and permitted refugees to approach the UNHCR for ending of their refugee status, while staying the deportation orders issued by the district court or the administration. In the case of National Human Rights Commission v. State of Arunachal Pradesh 17the Honble Supreme Court held that refugees are a class apart from foreigners deserving of the protection of Article 21 of the Constitution. INDIANS CONCERN TOWARDS REFUGEES PROTECTIONThere have been a number of special legislative measures to deal with refugee influxes inspite of any law which makes refugees as a special class distinc t from foreigner Special laws to deal with refugees have been used primarily by the various State Governments18 There are three main way in which the Indian government deal with refugees are refugees in mint influx situations are received in camps and accorded temporary protection by the Indian Government including, sometimes, A. A certain measure of socio-economic protection B. Asylum seekers from South Asian countries, or any other country with which the government has a sensitive relationship, apply to the government for political asylum which is usually granted without an extensive refugee status determination subject, of course, to political exigencies C. Citizens of other countries apply to the spot of the United Nations High Commissioner for Refugees (UNHCR) for individual refugee status determination in conformism with the terms of the UNHCR Statute and the Refugee ConventionThe first foreign influx of refugees occurred in 1959 from Tibet when the government, politically uncomfortable with China, set up transit camps, provided food and health check supplies, issued identity documents and even transferred land for exclusive Tibetan enclaves across the country for cultivation and occupation along with government provided housing, healthcare and educational facilities. The Sri Lankan Tamil refugees, having arrived in India in three waves beginning in 1983, have also been relatively well received in the geographically and ethnically adjacent State of Tamil Nadu where a large degree of local desegregation has occurred. In comparison, the Chakma influxes of 1964 and 1968 saw a subdued and reluctant government response. 19 The largest mass influx in post-Partition history occurred in 1971 when approximately 16 million refugees from erstwhile East Pakistan sought safety in India.Although most of the refugees returned within a year, the experience left the Indian government both bitingly at the non responsiveness of international organizations and compla cent in the confidence of being able to deal with future mass influxes. Refugees who are not lengthened direct assistance by the Indian Government are free to apply to the UNHCR for recognition of their asylum claims and other assistance. The ambivalence of Indias refugee policy is sharply brought out in relation to its Treatment of the UNHCR. While no formal arrangement exists between the Indian government and the UNHCR, India continues to sit on the UNHCRs Executive Committee in Geneva. India has not even write refugees host. It is paradoxical but true that India allows UNHCR to operate it on its territory despite of being entered into any legal treaty. REFUGEES RIGHT UNDER LAW IN INDIAMany experts in the area of refugee law believe that the more practical alternative to proposing an entirely new law is to push for changes in Indias current policy regarding refugees. As stated above, no current Indian law refers directly to refugees. Refugees thus fall under the pur glance of t he legislative framework that addresses all foreigners in India in the same way, under the Foreigners Act 1946. The Act contains broad powers of detention subject to the discretion of the executive director, and makes illegal entry into the country a crime punishable by up to 5 years with no exception for refugees and asylum seekers. Also pertinent to determine the rights of refugees in Indian law are two pre-independence enactments that enable the government to impose stringent conditions of entry and stay in India.This body of legislation indisputably gives the Indian executive excessive powers over foreigners in India, includingthe power to restrict movement inside India, to mandate medical examinations, and to limit employment opportunities. This framework is problematic for refugees because the governments unrestrained power of expulsion could peradventure lead torefoulementand deny refugees their basis human rights while in India in contravention of international obligation s. The Extradition Act 1962 provides some protection to refugees facing extradition by restricting the governments freedom to remove from its territory a particular category of foreigners. 20This restriction, however, is so narrowly relevant that it does not provide any real safeguards for the majority of refugees in India whose removal from the territory is most likely to fall under the category ofexpulsionrather thanextradition. INDIAS INTERNATIONAL EFFORT IN THE PROTECTION OF REFUGEES Although India is not a signatory to the 1951 Refugee Convention or the 1967 Protocol, it is party to a number of international human rights instruments that create protection obligations toward refugees. Indian and other commentators from developing countries also call attention to the current state of flux in international refugee law.In a statement to the Executive Committee of the UNHCR in October 2003, the Indian eternal Representative pointed out that the situation of refugee and migratory mo vements in the world nowadays are vastly different from what they were when the UNHCR was created and this had to be reflected in practice to produce the UNHCRs ability to play a meaningful role. 21 THE 1951 REFUGEE CONVENTION The 1951 refugees form is considered as an internationally agreed instrument and a naut mi stone in refugees protection, since as mentioned earlier in the definition22. A person becomes refugee as soon as he or she is in the situation, and not after a state has formally recognized him to be so.He automatically becomes entitled to the protection under this definition. The well found fear is to be judged to the advantage of the claimant which should take into account the situation prevailing in his origin and his individual circumstances. Persecution is not defined in the convention but has been interpreted to mean a violation of someones basic human right of sufficient gravity that the protection of another state is needed. 23 INTERNATIONAL COVENANT ON CIVI L AND POLITICAL RIGHTS (ICCPR) It recognizes the built-in dignity and of the equal and inalienable right of all member of the human family. It takes into account the Universal Declaration of Human Rights and character of the United Nation.It binds that state to conform to the spirit of the covenant each party to the covenant to respect and ensure to all individual within its territory the rights herein recognized without distinction of any kind via race, color, sex, language, political or other opinion national or social origin property birth or other status. 24 CONCLUSION AND SUGGESTION Although Indias past efforts in dealing with mass influxes has been commendable, its geopolitical position in the subcontinent makes it a preferred destination for asylum seekers and migrant workers. It can be easily seen from the foregoing paragraphs that India notwithstanding its own security concerns, particularly in the last couple of decades, and gouge of population and the attendant economi c factors, continues to take a humanitarian view of the problem of refugees.Even though the country has not enacted a special law to govern refugees, it has not proved to be a somber handicap in coping satisfactorily with the enormous refugee problems besetting the country. The spirit and limit of the UN and International Conventions on the subject have been, by and large, honoured through executive as well as judicial intervention. By this means, the country has evolved a practical balance between human and humanitarian obligations on the one hand and security and national interest on the other. The need for a refugee law is immediate. The uniform treatment of refugees is a must as long as India continues to accept asylum seekers across its porous borders.The restrictions and unequal treatment imposed on the refugee population by the Indian government is invidious and tarnishes its human rights record, which is not outstanding in any case. India can hold foreigners to reside in mandated areas, thereby barring their right of movement across the country, and providing India the ability to confine foreigners to refugee camps and conduct periodic camp inspections. One of the concerns that the host states have is the environmental degradation, which results from the activities of the refugees. The concern is real and needs to be addressed. In this regard the national law can place certain duties on the local administration, aid agencies, and on the refugee community. Often simple measures can neutralize causing harm to the environment.For example in Bangladesh the UNHCR has distributed compressed rice husks as cooking fuel to all families in the refugee camps in order to downplay the collection of firewood and mitigate against deforestation around the camps. Since 1996, kerosene used for the ignition system of the compressed rice husks is also being distributed to refugee families, to ensure that they do not need to collect firewood for this purpose. From th e perspective of solutions, an important question which needs to be addressed concerns the problem of stateless persons in the region. For, among other things the problem of gainsay nationality is the major obstacle in the process of repatriation. For example there are four large groups of stateless persons in the South Asian region. scorn the widespread consensus that detention should be viewed as an exceptional measure, a problem which confronts the refugees is detention without justification. The provision of the International Human Rights Law, which offers protection against arbitrary glom and detention should be properly implemented. A key problem in India relates to the frequent denial of access to camps to NGOs and the UNHCR. While India may have trustworthy concerns that motivate NGOs and states may indulge in disinformation to embarrass it before the international Community, the problem can be handled through establishing more effective communicative channels and diplom acy. The increasing emphasis of UNHCR in the last decade on voluntary repatriation as a solution meant that refugees are often returned against their will.Where return has been voluntary there needs to be thought given to formulate effective mechanisms to ensure that the state of origin lives up to the promises which it had made in order to persuade refugee to return. Thus the chakma refugees who returned from India to the Chittagong Hill Tracts In Bangladesh found that the Government did little to give them back their lands, or to provide them with enough resources to check a minimum standard of life. 25 Without any law or protocol, the Indian government has full autonomy to decide which rights and freedoms should be conferred upon which groups. Even promote communities like the Tibetan refugees have suffered due to lack of a firm policy. There is also a need for a change in the law.The model law has not been sufficiently considered by the Union Government. For the last five yea rs, the NHRC has been requesting the Government to provide refugee protection. Its present Chairman, A. S. Anand, has even set up a Committee to examine the law. The argument of terrorism and numbers having been met, there is no reason why the minimal protection against non-refoulement should not be enacted. This can probably be done even through rules. solely the argument is not just over the Sri Lankan refugees, the Bangladeshis, the Afghans, the Bhutanese or the Myanmarese. It is whether India wants its voice on the worlds most persecuted to be heard so as to swan future policy.If India is waiting for a cue from its neighbour, China has joined the convention and enacted refugee protection legislation. African countries have got together to devise both national and regional solutions. India needs to review its ambivalent refugee law policy, evolve a regional approach and enact rules or legislation to protect persecuted refugees. This is one step towards supporting a humanitarian law for those who need it. As a refugee-prone area, South Asia requires India to take the lead to devise a regional policy consistent with the regions needs and the capacity to absorb refugees under conditions of global equity. 1Ms. Kate Jastram and Ms.Marilyn Achiron, Refugee Protection A Guide to International Refugee Law, http//www. ipu. org/PDF/publications/refugee_en. pdf, (29 April 2010) 2 Article 1 of 1951 Refugee convention 1951 3 Rajeev Dhavan, Refugee Law and Policy in India (New Delhi PILSARC, 2004), p. 156. 4 Basic Facts, http//unhcr. org. ua/main. php? article_id=5&view=full ( 29 April 2010) 5 Article 1A(2) of the Refugee Convention, 1951 6Background information of refugees and asylum seeker http//www. refugeecouncil. org. au/docs/ intelligence operation&events/RW_Background_Information. pdf (visited on 26th march 2010) 7World Refugee Survey 2007, United States Committee for Refugees and Immigrants, http//www. refugees. org/WRS_Archives/2007/48- 69. 27 march, 2010) 8 R ajeev Dhavan, On the Model Law for Refugees A Response to the National Human Rights Commission (NHRC), NHRC Annual Reports 1997- 1998, 1999-2000 (New Delhi PILSARC, 2003). 9 Drafted under the auspices of the Regional Consultations on Refugees and migrant Movements in South Asia initiative in 1995, with Justice P N Bhagwati as the Chairperson of the Drafting Committee of the India-specific version of the national law on refugee protection. 10 Florina Benoit, India A National Refugee Law Would Equalise Protection, Refugees International, 2004. 11 Asian suppuration Bank, Nepal Country Strategy and Programme 2005-2009. 12 Section 2(a) of the foreigners act, 1964 defines foreigner as a person who is not a citizen of India. 13 Article 22(1), 22(2) and 25(1) of the Indian constitution 14 T.Ananthachari, Refugees In India Legal Framework, Law Enforcement And Security http//www. worldlii. org/int/journals/ISILYBIHRL/2001/7. html, (1 April 2010) 15 Articles,14,20 and 21 of the Indian Constit ution 16 AIR 1966 SCC 742 17 UNHCR Statistical Yearbook India, 2003, UNHCR Geneva. 18 National Human Rights Commission (1996) 1 SCC 742 at pr. 15 19 V. K. Dewan, The Extradition Act 1962in Law of Citizenship Foreigners and Passports, 2nd ed, Allahabad Orient Law House, 1987,p. 515. 20 James Hathaway, The Emerging Politics of Non-Entree, Refugees, Migration Review Vol. 91, December, pp. 40-41. 21 Article 1A(2) of the Refugee Convention,